The Attorney General Can Be Your Ally in Transformation
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The Attorney General Can Be Your Ally in Transformation June 18, 2021
The Attorney General Can Be Your Ally in
Transformation
Transformational transactions (e.g. mergers, assets sales, teachouts, JVs,
discontinuing certain programs, strategic program realignment) raise complex
issues and can face fierce resistance from stakeholders within or outside the
board room. However, the state Attorney General’s office can be a strong ally
when institutions of higher education take bold action in the best interest of their
mission.
Panelist:
• Laura Sparks, The Cooper Union
• Margaret Drugovich, Hartwick College
• Jonathan Green, Massachusetts Attorney General’s Office
• James Sheehan, New York Attorney General’s Office
• Anne Wallestad, BoardSource
The Attorney General Can Be Your Ally in Transformation June 18, 2021
The Higher Education Landscape The Attorney General Can Be Your Ally in Transformation June 18, 2021
January 2021
For the 4th consecutive year Standard and Poor’s gave the
higher education sector a negative outlook signaling the
existence of financial strain within the sector prior to the
pandemic.
The Attorney General Can Be Your Ally in Transformation June 18, 2021
Financial Stressors
• Demographics
• Shrinking pool of high school graduates
• International enrollment
• Race and Ethnicity
• Operating Pressures
• Decreased net tuition revenue
• Affordability Concerns
• Economy
• State appropriations
The Attorney General Can Be Your Ally in Transformation June 18, 2021
Demographics High School Graduation Rates
Demographics
Public High School Graduates by Race/Ethnicity
Source: Western Interstate Commission for Higher Education, Knocking at the Door, 10 th edition.
Demographics International Student Enrollment
State Appropriations Source: S&P Global; 2018 SHEF Report, State Higher Education Executive Officers. Constant 2018 dollars adjusted by Cost of Living Index, Enrollment Mix Index, and the SHEEO Higher Education Cost Adjustment (HECA).
The Financial Realities
With many institutions having problems meeting enrollment
and revenue targets pre-COVID, the pandemic has
exacerbated those problems causing a fundamental shift in
business model for many and making the need for these
discussions more important than ever.
The Attorney General Can Be Your Ally in Transformation June 18, 2021Tales From the Frontlines The Attorney General Can Be Your Ally in Transformation June 18, 2021
OURS IS THE HISTORY OF A NATION • Founded in 1859, on the eve of the Civil War—The Cooper Union • A beloved and storied institution representing the ideals of a nation • With a robust financial support system to sustain it in perpetuity, or so it seemed…
IT ALL CAME TO A HEAD 2012–2015 (ish) • A message of financial distress that was decades in the making finally comes to a head. • Complete breakdown of internal relations and the public’s trust. • Protests and a 60+ day sit-in, a lawsuit, an investigation by the Office of the Attorney General, and a deeply fractured community.
INGREDIENTS FOR CHANGE
• A negotiated settlement and financial discipline.
memorialized in a consent
decree provides a framework • Proactive, direct, and honest
for governance and communication and
management. engagement with the Office
of the Attorney General made
• A shift to collaboration and progress possible.
respect in living out the
framework signaled that • A commitment to
positive change was possible. transparency, clarity, and
planning rebuilt trust and
• New leadership brought an hope.
opportunity to heal while
also ushering in a new
commitment to operationalNOW… • 10-Year Plan for financial sustainability and resilience and ongoing risk management. • Thriving enrollment, new academic programs, cutting-edge partnerships. • Reengagement with the city and the nation through robust public programs. • Rebuilt community of supporters.
LESSONS LEARNED • Address challenges early and often—
the problems aren’t going away.
• Proactively engage both those
with oversight and constituents/
stakeholders—when somebody tells
you a problem is brewing, it probably is!
• People need to be heard and can
be educated about organizational
challenges—and without these,
change is likely impossible.
• Engagement with the Office of the
Attorney General isn’t the end
of the world—it might be the start
of a new beginning…Funding Hartwick’s FlightPath: A year of partnership with the NYS AG Dr. Margaret L. Drugovich, President
Funding FlightPath: A year of partnership with the NYS AG • October 2017: Board votes to engage a thought partner to explore alternative pathways to a sustainable future. • February 2018: Board votes to engage the Art&Science Group to complete a cycle of research and generate recommendations on strategic directions. • March 2018: President convenes faculty, staff and student working group to inform and respond to A&S research effort. • May 2019: President convenes an expanded campus based working group to work with research findings pending Board approval. • June 2019: A&S presents its recommendations to the Hartwick Community and the Board; Board votes to approve the President’s recommendation to authorize the development of a campus driven implementation plan to include actionable steps in response to the research
Funding FlightPath: A year of partnership with the NYS AG • Fall 2019: Campus working group begins to develop a plan that responds to the research findings • November 2019: Exploring different approaches to funding FlightPath, President Drugovich contacts Charities Bureau Chief Sheehan • December 2019: Mr. Sheehan tours our campus; we discuss FlightPath and possibility of funding through use of the endowment • January 2020 – October 2020: President shares with the AG: the assumptions that caused us to choose a course of transformation; audited financial statements; planning documents; planning process; information on restricted endowed accounts; 990s; credit ratings; accreditation reaffirmation, etc. Many phone and email exchanges designed to clarify our purpose, our plans, and our financial status.
Funding FlightPath: A year of
partnership with the NYS AG
• June 2020: Board votes to authorize:
• the implementation of FlightPath;
• an application to the New York Supreme Court to relieve
endowment restrictions (i.e. authorize use that would constitute
a change in the donor’s intent) to support initial funding of
FlightPath
• a fundraising campaign to support ongoing funding of FlightPath
• Summer 2020: while preparing the court petition, we start to
explore the possibility of using operational and unrestricted
endowment funds to fund FlightPath, while at the same time
accelerating spending of endowed scholarship funds in a manner
consistent with the donors’ original intent.Funding FlightPath: A year of
partnership with the NYS AG
• October 2020:
• the Board considers the eight statutory factors set forth in New
York Not-for-Profit Law and determines that it is prudent to
appropriate the unrestricted endowment funds for the support of
FlightPath and
• the Board further considers these same eight statutory factors and
determines that it is prudent to appropriate funds that are
restricted to use for student scholarships for the sole purpose
of funding scholarships, maintaining the donor’s intent.
• November 2020: the Charities Bureau represents that it will not
object to the planned appropriation.Funding FlightPath: A year of
partnership with the NYS AG
• Take aways:
• The Board played an invaluable role in determining when it was
time to change course and by taking necessary action along the
way.
• The Hartwick community played an invaluable role in creating a
sustainable plan for transformation that was grounded in objective
research.
• The NYS Charities Bureau played an invaluable role by
providing feedback, education, and advice on the feasibility (given
the law) of leveraging our endowment assets to fund the initial
years of FlightPath.
Drugovichm@hartwick.eduThe Attorney General – A Value Added Ally The Attorney General Can Be Your Ally in Transformation June 18, 2021
The Higher Education
Sector in Massachusetts
SeaChange Capital
June 18, 2021
Jonathan C. Green
Deputy Division Chief
Non-Profit Organizations/Public Charities Division
Office of Attorney General Maura HealeyRole of the AGO
• Guidance on Restricted/Endowment Funds
• AGO role on proposed transactions, mergers
• Close coordination between AGO and DHE
• Legislative response following closures
© 2020 Massachusetts Attorney General’s OfficeCollege Mergers and Closures
• Combinations:
– Wheelock College and Boston University
– Marlboro College (VT) and Emerson College
– Pine Manor College and Boston College
• Closures with Notice
– Newbury College
– Becker College
© 2020 Massachusetts Attorney General’s OfficeWHAT IS THE CHARITABLE MISSION? WHO ARE THE BENEFICIARIES? • State Charities expectations: • Look to your charter and IRS 990- • College of New Rochelle: “dedicated to the education of women and men in the liberal arts and professional studies. Building upon its original commitment to women, the College also reaches out to those who have not previously had access to higher education. . . “ • Charitable mission-providing education to charitable beneficiaries • Acting in best interest of that charitable mission • Stewardship of assets • Risk assessment • Potential harms to students • Planning for the mission to continue if the institution or program cannot • Avoiding run on the bank-public projection may be self-fulfilling
ENGAGEMENT-How can we help? • Not just board members and consultants • Students • Faculty • Community • Donors • Elected officials • Affiliations/Mergers
What we look to and will ask about • The independent audit process - state law, accreditation standards, reporting and disclosure, warning signs (going concern opinion, management letters) • The IRS 990 process - Mission Statement; board review and filing. • The endowment/institutional funds process - identification of restricted assets; return and appropriation of funds; investment and management policies • The accreditation process and the accreditor • “The institution demonstrates, through verifiable internal and external evidence, its financial capacity to graduate its entering class.” • If not, what are your teachout contingencies
Purpose Driven Board Leadership The Attorney General Can Be Your Ally in Transformation June 18, 2021
The Four Principles of Purpose-Driven Board Leadership
Purpose before organization: prioritizing the organization's purpose, versus the
organization itself.
Respect for ecosystem: acknowledging that the organization's actions can positively or
negatively impact its surrounding ecosystem, and a commitment to being a respectful and
responsible ecosystem player.
Equity mindset: committing to advancing equitable outcomes, and interrogating and
avoiding the ways in which the organization's strategies and work may reinforce systemic
inequities.
Authorized voice and power: recognizing that organizational power and voice must be
authorized by those impacted by the organization's work.
Full article available at https://ssir.org/articles/entry/the_four_principles_of_purpose_driven_board_leadership
The Attorney General Can Be Your Ally in Transformation June 18, 2021Principle #1: Purpose before organization The Attorney General Can Be Your Ally in Transformation June 18, 2021
Principle #2: Respect for Ecosystem The Attorney General Can Be Your Ally in Transformation June 18, 2021
Principle #3: Equity mindset The Attorney General Can Be Your Ally in Transformation June 18, 2021
Principle #4: Authorized voice and power The Attorney General Can Be Your Ally in Transformation June 18, 2021
Questions - ??? Presentation title June 18, 2021
Thank you Presentation title June 18, 2021
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